from the not-that-it-works-any-better dept

You may recall that a year ago, a massive DDoS attack was launched against GitHub from China. The attack itself was somewhat clever, in that it effectively turned the Great Firewall around, using Chinese search engine Baidu's ad platform and analytics platform to basically load code that contributed to the attack. The target of the attack were two tools that helped people in China access material that was blocked in China by the Great Firewall. Of course, this attack was actually the second attempt by China to stop people from accessing such information on GitHub. The first attack involved just using the Great Firewall to block GitHub entirely (it needed to block the entire GitHub, rather than just specific pages, because GitHub is all HTTPS) -- but that caused Chinese programmers who rely on GitHub to freak out and point out that they rely on GitHub to do their jobs.

The post at https://github.com/programthink/zhao/issues/38 vilifies our President Xi as a murder suspect, which is a groundless and malicious slander. We hereby express our strong concern and request you to take it off your website at the earliest time possible.

The blog post link above where we found this story also notes that the entire repo that includes this content is currently not accessible in China, though it's accessible outside of China. At the very least, that suggests that GitHub disabled access to it within the country. It's, of course, unknown if China believes that disabling access just from within China is enough based on its takedown, but it is the equivalent of just blocking it via the Great Firewall -- so perhaps.

from the live-by-rounded-corners,-die-by-rounded-corners dept

This one was so easy to predict. For the past couple of decades, completely clueless US politicians and bureaucrats (and tech company execs) have been screaming about how China "doesn't respect" our intellectual property. They demanded that China "get more serious" about patents and respecting IP. And for nearly a decade we've been warning those people to be careful what you wish for. Because, now China has massively ramped up its patent system, often by using odd incentives, but rather than helping American companies that demanded it, pretty much every patent lawsuit in China has been about a Chinese company punishing or blocking foreign competition. This is because the Chinese aren't stupid. It's a country that has thrived on protectionism, despite global efforts to "open up trade," and here it realized that the West was handing them the perfect trade barrier: one that let them say they were doing what the West wanted, while giving it the perfect excuse to block out foreign competition.

So, while clueless US and European IP bureaucrats celebrated China issuing so many patents, they totally missed that they'd actually given away everything.

Apple Inc. violated the design patents of a Chinese device maker and may have to halt sales of its latest iPhones in Beijing, the city’s intellectual property authority ruled, handing the U.S. company its latest setback in a pivotal market.

The iPhone 6 and iPhone 6 Plus infringe on Shenzhen Baili’s patent rights because of similarities to its 100C phone, the Beijing Intellectual Property Office wrote in its decision.

Many are speculating that Apple's recent $1 billion investment in the Chinese Uber clone Didi was in part to help deal with attacks like this. Basically every American company that wants to sell products in China ends up investing in Chinese companies for this kind of purpose. But, once again, just as we've been saying for years, the Chinese, unlike many in the West, absolutely recognize what patents are: a trade barrier, and they must love the fact that the US keeps asking them to build more trade barriers.

Until US patent officials finally understand that patents are not about innovation, but are really about restraints on trade, innovation and competition, we're only going to see more and more stories like this.

from the ever-been-to-tibet-bro? dept

Techdirt has written plenty of stories about the Chinese government's attempts to stifle dissent online using a variety of heavy-handed approaches. But a story in the Washington Post shows China's State Council Information Office trying a refreshingly different approach:

On May 28, a Twitter account purporting to represent China's State Council Information Office, a real government body, went off-script, asking an account called @Tibetans, "Have u ever been to Tibet bro?"

The tone of the tweet is so strikingly at odds with the Communist Party's turgid pronouncements that China-watchers were at a loss. When scholar Tricia Kehoe asked the State Council Information Office if the Twitter account (@chinascio) was real, the office replied that it was just "trying to fit in," adding an "LOL" for good measure.

As the article explains, the weird tweets kept on coming for a while, which obviously made people wonder whether the account had been hacked or subverted in some way. The Washington Post checked with whoever was running the Twitter account, and the latter insisted the comments were legitimate, but there was no confirmation of that from the State Council Information Office itself. Those entertaining tweets have now gone from the account's timeline, but fortunately they are preserved in this tweet by the Twitter account of GreatFire.org, an organization that monitors online censorship in China:

from the even-the-Great-Firewall-of-China-couldn't-keep-it-out dept

Techdirt has written a number of posts about the controversial "right to be forgotten" idea -- strictly speaking, a right to be de-listed from search engine results. As Mike noted a couple of months ago, there is no doubt that this idea is starting to "infect" an increasing number of governments and legal systems around the world. The Fei Chang Dao site has a fascinating post about what appears to be China's first "right to be forgotten" case. It includes a translation of the following background information provided by the court itself:

Recently the Haidian Court concluded a case involving a lawsuit filed by Plaintiff Ren against a certain Internet Services Company for infringement of the right of reputation, name, and general personality. On May 13, 2014, a European court issued a final judgment confirming that ordinary citizens have a "right to be forgotten" with respect to personal information, and following that the European Union has established the scope of a "right to be forgotten." During the two year period following the European court's recognition of the "right to be forgotten," the Haidian Court has concluded proceedings in the first case involving the scope of judicial protection of the "right to be forgotten" for a citizen's personal information. This case study has significant theoretical and practical value with respect to the issue of how China will conduct regulatory development and judicial practice to safeguard the "right to be forgotten" for personal information in the Internet age.

It's fascinating to see a Chinese court pointing to these developments in Europe, even though it later goes on to emphasize:

China's law as it exists today is unable to define a category of rights that is the so-called "right to be forgotten." The "right to be forgotten" is only touched upon in foreign statutory and case law, which cannot serve as the legal basis for China's protection of this kind of right.

If you're interested in the details of the case, the Fei Chang Dao site has a good summary, with full translations of all the relevant information. Suffice it to say that the court rejected Mr Ren's request to remove certain links, and gave the following explanation why:

the information at issue in this lawsuit regarding [the plaintiff] Ren Jiayu's work history relates to very recent events, and he continues to work in the business administration education profession. This information happens to form a portion of his professional history, and his current individual professional credibility is both of directly relevant and of ongoing concern. Ren Jiayu hopes to make use of his own good reputation in the industry to attract customers and students going forward, but information about his personal qualification is important information that customers and students rely on in making a judgment.

That eminently sensible reasoning augurs well for the future, if and when China decides to join the burgeoning "right to be forgotten" club officially by bringing in new laws on the matter.

from the get-past-the-myths dept

As India has been revamping its patent policy, there had been some serious concerns about broadening patent subject matter eligibility to include software and business methods. Earlier this year, however, the Indian Patent Office clarified that it would not allow patenting of just straight software patents. And that's good.

But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it's clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better -- ignoring that restricting the rights of the public has a real cost.

Delving briefly into the subject of IPRs, it is a matter of principle that a balanced intellectual property (IP) regime, i.e. a model that balances rights with adequate limitations/exceptions, contributes optimally to the holistic development and growth of the nation. Limitations or exceptions are flexibilities in the law, which cut down absolute monopoly conferred by IPRs, and ensure that use and sharing of knowledge for purposes such as research, education and access to medicines are not overridden by IP rightholders’ claims. The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is the largest international agreement governing countries’ IPR regimes also promotes the use of these flexibilities to build balanced regimes. The policy does occasionally state its commitment to the TRIPS agreement and the Doha Declaration, but does not commit or spell out any new concrete steps. Thus, it fails to show any seriousness about upholding and promoting a ‘balanced’ regime – in stark comparison to the detailed and surgical manner in which it aims to raise awareness about IPRs and commercialise them.

This is unfortunate -- and it's also a reason why I've argued we need to move away from calling them "limitations and exceptions" and towards what they actually are: the public's rights. The intellectual property laws, themselves, are "limitations and exceptions" on the public's right to use these things.

Unfortunately, when you don't have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public's rights.

The other big myth is that "patents = innovation." As we've noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately "measure innovation" fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we've covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it's no longer a "pirate nation." But, of course, in the process, it's turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.

But, as Sinha notes, it appears that India got the exact wrong message from China:

It is likely that the idea to use the IPR policy as a tool for ‘IPR indoctrination’ to result in staggering IPR generation came to the Indian government from their Chinese counterparts. In 1995, China started conducting elaborate training of its officers, researchers and students to popularise a generation of IPRs and last year the country received 10 lakh patent filings – an international record. At the conference, the officials were in awe of the Chinese statistics, and they were confident of catching up in the next few years. This despite the fact that in China, the race to patent innovations has only led to a proliferation of low value innovations in high numbers. Less than 1% of China’s patents are of intermediate or high value. Thus, China despite its high patent filings shows only a weak innovative performance. Globally, there is enough evidence to show that there is no positive correlation between patent filings and cumulative innovative performance of a country.

Unfortunately, this kind of blind belief that "patents = innovation" may serve to do severe damage to both the public and actual innovation in India. There are lots of (reasonable) concerns about high prices for medicines, but it could also harm India's pharmaceutical industry, which has actually thrived on being able to produce generic drugs that compete globally. Increasing a patent regime would actually stifle that industry. One hopes that at least someone who actually understands how innovation works can get through to the Indian government before it makes a big, big mistake.

from the disinformation-nation dept

In Russia, we've talked about how Vladimir Putin employs a massive army of Internet trolls to ridicule and shout down political opponents and critics. In China, the government's tactics are notably different. According to a new study out of Harvard (pdf), the Chinese government posts about 488 million fake social media comments -- or roughly one day of Twitter's total global volume -- each year. In China, these propagandists have historically been dubbed the "50 Cent Party," because it was generally believed they were paid 50 Chinese cents for every social media post.

It's the first study of its kind, only made possible after a blogger by the name of "Xiaolan" leaked an archive of all 2013 and 2014 emails to and from the Zhanggong district's Internet Propaganda Office. Journalists had previously written news articles about the leaks, but the researchers in this case crafted custom code to thoroughly dissect and identify the posts across a wide variety of formats and track them to verified government accounts, leading researchers to conclude that an amazing one out of every 178 posts to Chinese social media was government propaganda.

But unlike Russia's tendency to pay ordinary citizens to parrot propaganda (which is ultimately what wound up exposing the practice), the study found that many of China's social media propagandists are government workers, for whom propaganda was just part of their overall job duties at existing agencies:

"Although those who post comments are often rumored to be ordinary citizens, the researchers were surprised to find that nearly all the posts were written by workers at government agencies including tax and human resource departments, and at courts. The researchers said they found no evidence that people were paid for the posts, adding the work was probably part of the employees’ job responsibilities. Fifty Cent Party is a derogatory term since it implies people are bought off cheaply."

And whereas Russia's online propaganda efforts tend to involve personally attacking critics, Chinese propaganda takes a notably different tack -- focusing more on feel-good nationalism and reminders of the Communist Party’s revolutionary past. Like any government, the study highlights that China's biggest fear isn't from abroad -- but the country's own people -- a threat best handled with distraction, not direct confrontation:

"The main threat perceived by the Chinese regime in the modern era is not military attacks from foreign enemies but rather uprisings from their own people,” they said. Revealing a paternalistic approach, the guiding policy of China’s Fifty Cent Party appears to be that distraction is better than conflict. “Letting an argument die, or changing the subject, usually works much better than picking an argument and getting someone’s back up (as new parents recognize fast),” they wrote.

Granted, distraction certainly isn't a new concept, and it only takes about five minutes watching U.S. cable news to realize we're pretty damn good at it here in the States. In fact, we're so good at distracting ourselves from issues of substance that it seems unlikely that the United States government would even need to spend money on an institutional-grade social media disinformation effort. Then again, maybe I was just paid fifty cents to say that.

from the book-it dept

You should be aware by now that Facebook has taken a rather extreme stance when it comes to protecting its trademark. This stance has essentially evolved to consist of this: it will dispute pretty much anything else on the internet that has the word "book" in it. Examples include Designbook, Lamebook, and Teachbook. And, because trademark bullying isn't something that should be done half-way, the company also disputed the name of Faceporn, because why the hell not?

This has continued to this day, which is not news worthy. But what is news worthy is when Facebook gets one of these wins in a trademark dispute in China, where trademark disputes haven't typically gone the way American companies would wish.

A Chinese company has been told it can no longer use the words face book in its branding, in a rare favorable court ruling for a U.S. company that comes after extensive efforts by Facebook to court Chinese officials. The Wall Street Journal reports that the Beijing Higher People's Court announced it had revoked approval for Zhujiang Beverage — which makes flavored milk drinks and porridge — to use the name.

Adding to the interesting nature in this ruling is Zhujiang's assertion that the Chinese translation of "face book", which is "lian shu", is something of a cultural term in China, referring to masks that are traditionally worn in Chinese operas. These appear to be some examples of this, though there is a confusing number of terms that all seem to refer to variations of these operatic masks and garbs. What seems to be taking everyone by surprise in this case is that the Chinese court sided with Facebook over a Chinese company, despite what looks to be a fairly severe deviation in the industries in which either side is engaged. Facebook is famous worldwide, enough so that perhaps one could argue that use of the term in other industries would still draw confusion and attention back to the social media site.

Except that Facebook is still banned on the Chinese mainland by the ruling party.

The social network remains blocked to Internet users in the Chinese Communist Party–ruled nation, but founder and CEO Mark Zuckerberg has made efforts to ingratiate himself with Chinese officials, including by recently braving the notorious Beijing smog to take a run in front of the gates of the Forbidden City.

Meaning that perhaps the ban on the site is going to be lifted soon. If not, you would expect the Chinese government to reverse the court's ruling, protecting a Chinese company doing business on the mainland over an American company and its banned product. Still, it's hard to see if there is any real confusion to consider here under the present circumstances, but that might not matter in China the way it matters in America.

from the power-play dept

So we've talked a lot about the Great Firewall of China and how it works. Contrary to what many believe, it's not just a giant government bureaucracy blacklisting content, but a huge ecosystem that partially relies on unpredictability and the lack of intermediary liability protections online. That is, rather than directly say "this and that are blocked," the Chinese government will often just let companies know when they've failed to properly block content and threaten them with serious consequences. Because of this, you get a culture of overblocking, to avoid running afoul of the demands. This is one of the reasons why we believe that strong intermediary liability protections are so important. Without them, you're basically begging for widespread censorship to avoid legal consequences.

And, in many ways, it works quite well in China. Yes, sophisticated users know how to use VPNs and proxies and to get around the blocks, but many people do not. But something interesting is happening in China right now, as one of the largest and most successful internet companies there appears to be challenging the censorship regime. First, it's important to recognize that in China, one subject that is absolutely, without question, censored, is anything relating to the Tiananmen Square protests and crackdown of 1989. On the internet in China, it's as if the event never happened. People have tried workarounds, using euphemisms and wordplay, but eventually those get disappeared down the memory hole too. There was even that time the censors banned the term "big yellow duck," after people replaced the famous tanks in the "tank man" photo with giant rubber ducks:

But something odd happened yesterday. Suddenly, on Baidu (which is like the Google of China), searches related to the tank man and other symbols of the Tiananmen Square protests were showing up on Baidu. Clay Shirky, who has been living in China recently, posted details on his Twitter feed, which is well worth reading:

It appears that this is something of a reaction to the Chinese government announcing that it will be investigating Baidu's advertising practices, following the death of a young man from cancer, who had kicked up quite a lot of attention after he had tried an "experimental" cancer treatment he discovered via an ad on Baidu. When it didn't work, he blamed Baidu for allowing the ad, and when he passed away there was a public outcry. In response, the government announced plans to investigate Baidu's ad practices. It appears that Baidu loosening the padlocks on Tiananmen Square might be a response to that, which lots of people seem to think is playing with a fire in a manner that will almost certainly leave the company burned.

This is a direct & blatant refusal to play by the rules. Baidu has a lot of power behind the scenes, but even then, this looks like treason.

Shirky has a lot more to say, including some further speculation that perhaps there was growing tension from last year, after the Chinese government basically made use of Baidu to fire a denial of service at GitHub. The fact that the packets came via Baidu was, as Shirky notes, a PR blackeye for Baidu at a time when the company wants to expand beyond China. Shirky also deleted a tweet that originally said "this has to backfire," noting how central media and internet censorship is to the current regime.

The brief dropping of the censorship appears to be (again, Shirky notes no one knows for sure -- but many people seem to believe) Baidu trying to let the Chinese government know that it has become powerful enough to make trouble for the government, so it's not just a one way street in terms of who holds the power. Of course, that seems like an incredibly risky move to make if you really don't have enough power to stand up to the government.

We may never know all the details of what's going on, but it's a brief, if fascinating, view into some of what's going on in China today with the Great Firewall, and the increasing power of some of its most successful companies. But it's also a reminder of why we should be so thankful for strong intermediary liability protections in the US, and how not having such protections is a sure path to censorship.

from the watch-your-step dept

Over the years, Techdirt has been trying to keep up with the deepening censorship in China, as more and more ways are found by the authorities to keep online users in check. Given the political situation there, that's hardly a surprise, but what is strange is the following, reported by Tech In Asia:

China's internet censors have been busy recently. Last week we saw the uptight folks at SAPPRFT [State Administration of Press, Publication, Radio, Film and Television, China's main censorship body] take down Papi Jiang, a viral video comedian of sorts who had even attracted VC funding, over a few curse words. We also saw Apple’s online books and movies platforms get taken offline, reportedly thanks to SAPPRFT's sudden demands.

It's all very depressing, but it also highlights one of the most effective aspects of China's online censorship regime: it’s totally unpredictable.

Naïvely, you might think that the Chinese government would want to establish very clear lines in the sand that its citizens must not, under any circumstances, cross. But the Tech In Asia post perceptively points that unpredictability has a big advantage, using the following analogy:

Imagine being near a steep cliff. During the day, when you can see clearly, you might walk right up to the edge to take in the view. But at night or during a thick fog, you're probably going to steer well clear of the cliff's edge to ensure that you don’t accidentally misjudge where you are and tumble to your death.

Here's how that works out for censorship:

China's vaguely-defined web content rules and inconsistent censorship enforcement work the same way as the fog near a cliff: since people can't see exactly where the edge is, they're more likely to stay far away from it, just in case. There's no toeing the line, because nobody knows exactly where the line is. So instead of pushing the envelope, many people choose to censor themselves.

In order to ensure that margin of safety, people will tend to censor themselves more than is necessary according to the stated rules. If the line in the sand were well defined, they could step right up to it, fairly secure that they will be safe provided they don't cross. In effect, by introducing an unnerving element of uncertainty into its actions, China obtains a more stringent self-censorship on the part of its citizens than it would from formally applying well-defined rules through official channels.

from the from-bad-to-worse dept

Last summer, we wrote a bit about the Regional Comprehensive Economic Partnership (RCEP), a trade agreement that is being worked on by a bunch of Asian countries, and which is often described as an "anti-TPP" or, at the very least, a competitor to the TPP. It's being driven by China and India -- two countries who were not in the TPP process. Given how concerned we were with the TPP, we had hoped, at the very least, that RCEP would be better on things like intellectual property. Unfortunately, some early leaks suggested it was even worse. And while the TPP is still grinding through the ratification process in various countries, RCEP has continued to move forward, and the bad ideas have stuck around.

The RCEP will be a massive trade agreement and the content of the IP Chapter is important. It will bind India and China, two countries left out of the TPP. Japan and Korea are trying to push many of the worst ideas from ACTA, TPP and other trade agreements into the RCEP IP Chapter. Some of the issues that negotiators did not understand in the TPP, such as the damages provisions, are also lurking in this text, creating risks that negotiators will do worse than they think, because the secrecy of the negotiations insulates the negotiators from timely feedback on technically complex issues. Japan and Korea are pushing for test data monopolies, without the same safeguards available to patent monopolies. There are proposals for patent extensions, restrictive rules on exceptions to copyright, and dozens of other anti-consumer measures, illustrating the power of right-holder groups to use secret trade negotiations to limit democratic decisions that impact access to knowledge, the freedom to innovate and the right to health, in negative ways.

The TPP is not good on intellectual property (at all). But seeing RCEP apparently be just as bad, if not worse, is not exactly encouraging. As I've said in the past, I think free trade is an important ideal, but free trade agreements are increasingly about something entirely different, and it's about backdoor (and backroom) mechanisms for putting in place regulatory frameworks that favor certain legacy players.